Surveillance in a British context

Written by Una Murphy. Commissioned by New Notions for our screening of Citizenfour by Laura Poitras.

The documentary Citizenfour “is a wake-up call that hits you like a cold slap in the face” according to a review in RollingStone.

The subject of the documentary is former United States National Security Agency (NSA) intelligence analyst Edward Snowden who believes that “the public has a moral right to know the widespread extent to which the government, cloaked in the defence of monitoring global terrorism, is spying on its citizens, right down to each email and Google search”.

The film portrays how the tension rises as journalists help Snowden disseminate his stolen data to the world.

There are two things that struck me in this review; the mention of journalists working to get their story out to the wider world (didn’t we all think that journalism was a dying profession?) and the reference to George Orwell’s book 1984.

First to Orwell’s dystopian novel 1984 and the stark warning that “Big Brother is Watching You”. Big Brother is a symbol of power and surveillance and the novel examines the effect that he has on the citizens of Oceania.

Real life’s USA Big Brother was named as NSA by whistleblower Edward Snowden.

In the USA the government reads the content of emails, file transfers and social media chat. Metadata on billions of text messages and phone calls are collected by the NSA.

Real life’s UK Big Brother(s) have also been making headlines.

In the UK, surveillance agencies illegally kept data on British citizens for more than ten years. The collection of data on everyone’s communications was illegal between 1998 and 2015, according to the Investigatory Powers Tribunal, the watchdog for intelligence agencies.

In October it was reported that a change to the law means that GCHQ and other surveillance bodies are now free to build up datasets on citizens, so long as they are more transparent about it.

Small tweaks to the law on surveillance mean that UK spying agencies will be able to continue collecting data on citizens.

The Investigatory Powers Tribunal is a secretive court which regulates state surveillance on its citizens. It found that data was illegally collected on UK citizens until last year without any code of practice or other rules to government how the information was being used. The tribunal hearing was told how spies:

checked information on their friends or public figurescheck on birthdayssnooped on their own family members for “personal reasons”.

A London based charity called Privacy International takes legal action to ensure that surveillance is consistent with the rule of law.

Millie Graham Wood, legal officer at Privacy International, said: “It is unacceptable that it is only through litigation by a charity that we have learned the extent of these powers and how they are used. The public and Parliament deserve an explanation as to why everyone’s data was collected for over a decade without oversight in place and confirmation that unlawfully obtained personal data will be destroyed.”

Edward Snowden first revealed the bulk collection programme that allowed GCHQ to break into internet cables and other communications and use that data to build up huge databases about people in the UK with no regulation or oversight.

Snowden worked with journalists to get his story out to the wider world.

So, back to the journalists.

The media has found the digital age challenging to say the least. Technology brought the phenomena of ‘churnalism’ not original, investigative journalism.

But the tradition of journalism uncovering information that the state, ruling political powers or big business did not want you to know has been a noble one.

In my life time there has been the Watergate investigation by the Washington Post reporters Bob Woodward and Carl Bernstein and the Thalidomide Scandal uncovered by the Sunday Times Insight team of journalists led by editor Harold Evans and many more.

Watergate: June 1972 five men wearing business suits and surgical gloves arrested in the middle of the night with illegal bugging devices at the Democratic Party headquarters in the Watergate building in Washington, D.C. The burglars turned out to be part of a wide-ranging political espionage and sabotage operation run by President Nixon’s top aides, one that triggered a massive White House cover-up directed by the president himself. After that cover-up unravelled, more than 70 people, including cabinet members and White House assistants, were convicted of criminal abuses of power; only a pardon by his presidential successor spared Nixon himself from becoming the first chief executive in history to be indicted for felonies committed in the Oval Office.

Thalidomide: Sunday Times editor Harold Evans and his journalists helped establish the liability of Distillers, the company that produced and marketed the drug in Britain and is one of the landmarks of 20th-century UK journalism, especially as it eventually forced a European Court of Human Rights ruling that has since allowed British journals to pursue the key moral elements of issues of public concern, even when legal proceedings are active.

Closer to home, last year the Belfast Telegraph found, through a Freedom of Information request, that the BBC in Northern Ireland were using the Regulation of Investigatory Powers Act (RIPA) to catch license fee dodgers, not terrorists.

RIPA regulates the powers of public bodies to carry out surveillance and investigation. The Act was introduced in 2000 to safeguard national security. As well as the BBC using the legislation to track down those who don’t pay their TV license it has been used to deal with littering and making sure parents are sending their children to school.

In Northern Ireland, the Office of First Minister and Deputy First Minster is amongst those who can authorise direct or covert surveillance. There is an Investigatory Powers Commissioner in Northern Ireland who keeps surveillance under review.

And it is worth noting that in Northern Ireland ‘emergency laws’ arising out of the conflict here including trial by non-jury“Diplock” Courts have not been scrapped.

But the dented reputation of the journalistic trade is being restored; working with whistleblowers to counterbalance surveillance with scrutiny and speaking truth to power.

Summary of UK Surveillance legislation

Regulation of Investigatory Powers Act 2000 (RIPA) provides the regulatory framework for determining whether a range of covert investigatory techniques by public authorities is proportionate and necessary in compliance with Article 8 of the European Convention on Human Rights.

Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA) provides the regulatory framework in Scotland for determining whether covert surveillance and the use of covert human intelligence sources by public authorities acting on devolved matters, is proportionate and necessary in compliance with Article 8 of the European Convention on Human Rights.

Intelligence Services Act 1994 (ISA) makes provisions for the issue of warrants and authorisations enabling certain actions to be taken by the Intelligence Services in relation to interference with property and wireless telegraphy.

Part III Police Act 1997 outlines the requirements for the consideration and authorisation of interference in respect of property and wireless telegraphy.

Data Protection Act 1998 (DPA) regulates the processing of personal data. It provides eight principles of good information handling with which organisations must comply and provides individuals with rights with respect to the processing of their personal data.

Further reading

Surveillance Road Map: Information Commissioner’s Office et al, 2016

Human Rights in Northern Ireland: The Committee on the Administration of Justice Handbook, 2015